Widener v. Pacific Gas & Electric Co.

• Decision Date: 01 November 1977
• Court: California Court of Appeals Court of Appeals
• Parties: , 3 Media L. Rep. 1260 Donald WIDENER, Plaintiff, Cross-Defendant, Appellant and Respondent, v. PACIFIC GAS & ELECTRIC COMPANY, a corporation, and James C. Carroll, Defendants, Cross-Complainants, Respondents and Appellants. Civ. 40240.

Page 304

142 Cal.Rptr. 304

75 Cal.App.3d 415, 3 Media L. Rep. 1260

Donald WIDENER, Plaintiff, Cross-Defendant, Appellant and Respondent, v. PACIFIC GAS & ELECTRIC COMPANY, a corporation, and James C. Carroll, Defendants, Cross-Complainants, Respondents and Appellants.

Civ. 40240.

Court of Appeal, First District, Division 4, California.

Nov. 1, 1977.

As Modified on Denial of Rehearing Nov. 28, 1977.

Hearing denied Jan. 19, 1978.

David E. Pesonen, Garry, Dreyfus, McTernan, Brotsky, Herndon & Pesonen, Inc., San Francisco, for plaintiff, cross-defendant, appellant and respondent.

Charles T. Van Deusen, Arthur L. Hillman, Jr., F. Ronald Laupheimer, San Francisco, Crosby, Heafey, Roach & May, Oakland, for defendants, cross-complainants, respondents and appellants.

CHRISTIAN, Associate Justice.

Donald Widener (hereinafter "appellant") appeals from a judgment notwithstanding the verdict and from an order granting a new trial after a jury had awarded him damages on his complaint for libel against Pacific Gas & Electric Company and its employee, James C. Carroll (hereinafter "respondents"). The verdict against PG&E was in the amount of $750,000 compensatory damages and $7,000,000 in punitive damages and against Carroll in the amount of $8,000 punitive damages. The jury also found in favor of Widener on a cross-complaint by Carroll.

The trial court rendered a combined "Order for Judgment Notwithstanding the Verdict, Order Conditionally Granting New Trial, and Order Granting New Trial on Cross-complaint." In its order, the trial court stated that the judgment n. o. v. was granted on the ground that appellant had failed to produce any evidence of "actual malice" as required under New York Times Co. v. Sullivan (1964) 376 U.S. 254, 84 S.Ct. 710, 11 L.Ed.2d 686, and that the evidence was thus insufficient to support a verdict in favor of the plaintiff. The trial court also stated that "In the event that, for any reason, the aforesaid order for judgment notwithstanding the verdict is reversed on appeal then the motion of defendants James C. Carroll and Pacific Gas and Electric Company, a corporation, for a new trial is hereby granted . . . ." The trial court specified, as the reason for its "Order Conditionally Granting New Trial," the same reason that it had given for granting a judgment n. o. v. that plaintiff had failed to produce clear and convincing evidence of actual malice. The trial court also conditionally granted the defendants a new trial on the basis that the damages awarded by the jury were excessive. The trial court also granted defendant Carroll a new trial on his cross-complaint.

Widener appeals from the judgment notwithstanding the verdict and from the alternate order granting a new trial. Defendants PG&E and Carroll have taken a protective cross-appeal from the judgment entered on the jury's verdict in favor of plaintiff.

This libel action concerns a certain letter, written by respondent James C. Carroll, a supervising steam generation engineer employed by respondent Pacific Gas & Electric. The letter, dated July 13, 1971, was reviewed and revised several times by Carroll's superiors at PG&E, and was sent to Robert Howard, Vice-President of NBC and Station Manager of KNBC-TV in Los Angeles. In the letter, Carroll attacked the content of "Powers That Be," a nuclear power documentary produced by KNBC, and charged appellant Donald Widener, the producer of the documentary, with a gross breach of journalistic ethics secretly taping a preinterview discussion with Carroll, concerning the problem of faulty fuel rods, and splicing that discussion into the final film.

Appellant Widener was employed by KNBC as a documentary producer. Widener had received professional recognition for previous documentaries made for KNBC, and in 1971, had a one-year exclusive contract with NBC to produce three documentaries. One of these films, "Powers That Be," concerned the subject of nuclear power as a source of electrical energy. The research, writing, interviewing, and editing of the film were done by appellant pursuant to his contract with KNBC. "Powers That Be" was narrated by the well-known film personality, Jack Lemmon, and was broadcast in prime evening time over KNBC in Los Angeles on May 17, 1971. The point of view of the film was essentially anti-nuclear.

During the preparation of "Powers That Be," appellant filmed an interview with respondent James C. Carroll. The filming occurred in the control room of Humboldt Unit No. 3, a nuclear power plant operated by PG&E near the City of Eureka. The interview had been arranged by the public relations department of PG&E.

Respondent Carroll was aware that he was being filmed, and that his voice was being recorded on the NBC equipment, during the formal interview. During the filming, Carroll was seated facing Widener under bright lights especially set up for the interview. A member of the NBC camera crew fastened a sensitive Laveliere microphone on a cord around Carroll's neck. The filmed questioning was preceded by the sharp report of a clapboard held in front of Carroll's face. The entire filmed interview with Carroll was approximately four minutes in length. A one-minute segment was used in the finished film. The film as broadcast lasts approximately 50 minutes.

Carroll did not see the KNBC broadcast of the film; he first learned of the broadcast from an acquaintance. Carroll was informed that he appeared "unable or not willing to answer a question that had been given to (him)."

On May 26, about a week after the broadcast, Frederick R. ("Fritz") Draeger, PG&E's "nuclear information specialist" and the employee who had made the arrangements for Widener's visit to the Humboldt Bay power plant, sent a memorandum to three of his superiors in the public relations department. The May 26th memo, which was sent to Larry R. McDonnell, head of the PG&E News Bureau, A. J. McCollum, head of Public Information, and Robert R. Gros, vice-president of Public Relations, reported that a few of Draeger's friends who had seen the film "reacted violently" and that some friends of Dale Cook, Western States public relations officer for the U. S. Atomic Energy Commission, "tagged the documentary as 'smooth, professional and devastating.' " The May 26 memo states in full as follows:

LRM/AJM/RRG:

"Powers that Be" was shown on KNBC Tuesday, May 18, 1971. A few of my friends saw it and reacted violently. I understand Jack Horton was concerned and has Bill Walker trying to develop a rebuttal program. From all I heard, we should go in and ask for equal time to respond to a hatchet job. Dale Cook reports that his friends tagged the documentary as "smooth, professional and devastating."

From all I could glean as relates to our work at the Humboldt Bay Power Plant, Jim Adams wound up on the cutting room floor and J. Carroll's footage was so placed as to give the worst possible impression.

KNBC plans to repeat the documentary in a few months. In six to nine months they will put it in the studio's circulating library. The film is currently being offered to affiliate stations.

Dale Cook has promised to send me a review of it which appeared in the Los Angeles TIMES. The review is negative from our point of view.

Widener's contract has not been renewed by KNBC so he is going independent. Thus, I have had difficulties in trying to get more information. At present there is only an original of the documentary and the studio refuses to let it out. However, to assuage my feelings, a transcript is being mailed to me today. It will be reproduced here and given broad circulation.

[handwritten]P.S.-Just received transcript in mail-attached.

FRD

JCCarroll [handwritten]FABoone

cc: JRAdams A copy of the memo was also sent to Carroll.

Sometime soon after May 26, Carroll asked Draeger to seek a copy of the film for review. Draeger had already requested the film on his own. KNBC declined to release its only copy but, as Draeger had reported in his May 26 memorandum, "to assuage my feelings, a transcript is being mailed to me today. It will be reproduced here and given broad circulation."

Draeger promptly circulated the transcript to "appropriate people in the company who might have an interest," but not to Carroll. Carroll finally received a copy of the film transcript about a month later, on June 25. Upon reading it, Carroll became "upset" and "quite angry" at being portrayed as evasive. Carroll believed that the transcript erroneously and unfairly portrayed him as unwilling to answer a question concerning fuel cladding. ^* The film transcript read, in part, as follows:

"(JACK LEMMON): This reactor in northern California has been operating since the 1950s. But not without criticism. Such as faulty fuel rods, a problem since corrected. We asked P. G. and E.'s James C. Carroll about such criticisms.

"(DON WIDENER): Mr. Carroll, as you know, there have been published criticisms of the plant here for using improper construction materials in the beginning. Can you describe what that's all about?

"(JAMES C. CARROLL): Well this is analogous to a problem you have in your industry. There were criticisms of improper design and construction techniques in early color television sets that resulted in excessive radiation to people.

"(DON WIDENER): What was it exactly that the critics were talking about in your case?

"(JAMES C. CARROLL): I don't think we ought to answer that, it's too lengthy a question. ¹

"(JACK LEMMON): Long questions. Sometimes short answers. It's tough to get a matched set. The questions about nuclear power involve radiation, long-lasting wastes, and the possibility of a major accident. Long questions, indeed."

Carroll's memory was somewhat cloudy as to whether he had said the words shown in the transcript during the filming. In his testimony, Carroll did recall responding to Widener in a low voice during the filming, but "it was a mystery . . . how my . . . low voiced conversation could...